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Guidelines and Policies

Consent guidance: patients and doctors making decisions togetherUK
General Medical Council
This guidance sets out the principles on which good clinical decisions should be based. It provides a framework for good practice that covers the various situations that doctors may face in the course of their work. The guidance concentrates on decision-making in the context of investigations or treatment; but the principles apply more widely, including decisions on taking part in research, and decisions at the end of life.

Substitute Consent: What the Law Says [PDF] NSW
Office of the Public Guardian
Guidelines on the law of consent and substitute consent in NSW. Also provides guidelines on how to obtain consent from the tribunal or public guardian.

Legislation

Guardianship Act 1987NSW
NSW Parliament
The Act provides guidance on who can make medical decisions for a person deemed to lack capacity and the duties of the decision maker. Also provides the Tribunal and Courts to consent to certain types of treatment. S33 provides guidance on when a person should be considered incapable of providing consent.

Guardianship Regulation 2005NSW
NSW Government
Provides regulations regarding consent under the Guardianship Act for certain types of medical treatment and the keeping of records.

Consent Guidance: patients and doctors making decisions togetherUK
General Medical Council
This guidance sets out the principles on which good clinical decisions should be based. It provides a framework for good practice that covers the various situations that doctors may face in the course of their work. The guidance concentrates on decision-making in the context of investigations or treatment; but the principles apply more widely, including decisions on taking part in research, and decisions at the end of life.

Consent Tool Kit 5th EditionUK
British Medical Association
The tool kit consists of a series of cards relating to specific areas of consent such as providing treatment to children; consent and research; and obtaining consent for teaching purposes. Separate cards have been produced identifying factors to be considered when assessing competence and determining “best interests”.

Guardianship Tribunal Information – Person Responsible [PDF] NSW
NSW Guardianship Tribunal
Under the Guardianship legislation, if a person is unable to consent to treatment a person responsible can consent in their place. This fact sheet outlines who is the person responsible and their role and responsibilities.

Guardianship Tribunal Information – Special medical consent guidelines [PDF] NSW
NSW Guardianship Tribunal
For a person who lacks the capacity to consent to medical treatment, only the tribunal can consent to special medical treatment. This includes: sterilisation, termination of pregnancy, use of psychotropic medication or androgen reducing medication.

Cases

Application of Justice Health; re a Patient [2011] NSWSC 432NSW
A prison inmate with end stage lung cancer had lost his competence. Brereton J found that the preservation of health did not require the provision of futile treatment and the authorities could discontinue life-sustaining treatment and make a not-for-resuscitation order. There was some concern that this might not be possible because the Crimes (Administration of Sentences) Act 1999, s 72A, states that medical treatment must be supplied to inmates to preserve their health.

MAW v Western Sydney Area Health Service[2000] NSWSC 358NSW
Discusses the requirement of consent and the powers and limits of parens patriae – that is, the power of the court to provide consent in certain situations. In this case the wife of a man in a persistent vegetative state wished to have his sperm extracted in order to have a child.

Re C (adult, refusal of medical treatment) [1994] 1 All ER 819UKnot publically available
A patient suffering from paranoid schizophrenia was found to be competent to refuse treatment. Lord Goff outlines three stages in deciding whether the patient can understand the nature, purpose and effects of the proposed treatment: 1. Can the patient comprehend and retain information. 2. Does the patient believe the information. 3. Can the patient weight the information, balance the risks and make a choice?

Re KH (A child) [2012] EWHC B18 (Fam)UK
Application by an NHS Trust for declarations in relation to the best interests of a severely disabled child and, in particular, as to his medical treatment in the event that his condition should deteriorate. A declaration was made to authorise an advanced care plan to withdraw CPR, ventilation and antibiotics from a child severe brain damaged by viral encephalitis.

TS & DS v Sydney Children’s Hospital Network (“Mohammed’s case”) [2012] NSWSC 1609NSW
Garling J refused to force doctors to provide mechanical ventilation when parents sought an order requiring treatment for their child. Garling J was highly critical of quality of life assessments. His Honour found that the treatment would not cure Mohammed, not prevent his inevitable death but it would cause significant pain and discomfort.